Open-records activists question Amazon-Arlington disclosure clause

Arlington County’s agreement with Amazon has drawn the scrutiny of both activists and a leading Virginia open-records advocate over a clause that gives the company at least two business days to refute, redact or file a lawsuit when someone seeks records of its interaction with the county.

While the Arlington County attorney and the director of the Virginia Economic Development Partnership (VEDP) say confidentiality clauses are standard concepts in economic development deals, the two-day minimum provision is not, said Megan Rhyne, executive director of the nonpartisan Virginia Coalition for Open Government.

She found that Amazon’s deal gives the company the ability not just to work with the government to tailor what information it provides in response to citizens’ requests, which is common, but also allows time for the company to go to court to prevent the release of the information.

“For Amazon to do whatever it deems appropriate — that’s too broad, and opens the door to more difficult and varied efforts” to not comply with the spirit of the state’s Freedom of Information Act, Rhyne said.

Arlington County attorney Stephen MacIsaac disagreed, saying the language in the incentive agreement is standard, simply a variation on wording used for years.

“We’ve never had a situation where a company felt threatened and ran to court or tried to prevent [a document’s] release,” MacIsaac said. “It’s a standard courtesy we extend, and it hasn’t turned into an issue at all.”

The clause says the county and its Industrial Development Authority, an agency that encourages and supports economic activity, will release only what is mandatory under FOIA or other laws. Similar clauses appear in agreements Arlington has with other companies.

But the Amazon agreement also says that before the county releases anything in response to a public-information request, it will give Amazon not less than two days “to allow Amazon to take such steps as it deems appropriate with regard to the requested disclosure of records.” Virginia’s FOIA law indicates that exemptions should be used narrowly, and notes that governments are permitted, but not required, to keep certain information from the public.

The bulk of the agreement focuses on up to $23 million in economic incentives the county will give Amazon in exchange for building its headquarters facility, which the company says will eventually house at least 25,000 employees.

Amazon did not respond to a request for comment. (Amazon founder and chief executive Jeffrey P. Bezos owns The Washington Post.)

The retail giant also has a two-day notice provision in its contract with the state of Virginia, which Stephen Moret, president and CEO of the state economic development office, said is intended to give the company time to react to a FOIA request and protect its proprietary information. Reports on Amazon’s creation of jobs and wages will be made public without prior notice to Amazon, Moret said in an email.

Language in the state agreement, which provides up to $750 million in grants for Amazon, says the delay in releasing information is “to allow the Company to seek a protective order or other appropriate remedy . . . limit disclosure, refuse to disclose, and redact and/or omit portions of materials to the maximum extent permitted by applicable law.”

Moret said his agency “typically provides notice to a company whenever a FOIA request is received for information related to them, whether or not there is a specific provision requiring VEDP to do so in the incentive agreement.”

That kind of coziness between government and industry enrages activists who are battling the incentives agreements.

“There’s very little transparency with how the deal was made, and it’s very, very hard to hold [Arlington County] accountable because Virginia is such a corporate-friendly state,” said Alex Howe, a Democratic Socialist, at a community meeting Tuesday night.

Rhyne said her organization has seen more complaints recently about economic development deals.

For example, the Northern Virginia Daily reported Thursday that the Warren County Economic Development Authority spent $540,269 on a police academy that was never completed, but the newspaper was told, in response to a FOIA request, that a contract between the authority and the developer could not be found.

Governments that give Amazon advance notice and help in keeping information quiet are another step down a slippery slope, Rhyne said: “It’s a very clear example of ‘trust us, we know what we’re doing, and you should be fine with it because jobs, jobs, jobs.’ ”